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Saturday, January 18, 2014

sec. 42 and sec.45 of Prisons Act - Jail Manual - Carrying a cell phone and charger by a visitor in Jail - F.I.R. registered under sec. 42 and 45(12) of Prisons Act - writ to quash under sec.482 of Cr.P.C. - High court dismissed - Apex court set aside the High court order - held that by the date of offence Cell Phone not included as prohibitory Article and By the date of offence no communication was done - the accused is only a visitor not a prisoner , so the above sections not applicable to the accused - quashed the F.I.R and charges by allowing the criminal appeal = Varinder Singh …Appellant Versus State of Punjab & Anr. ...Respondents = 2014 ( January - Vol - 1-D.B.) Judis.nic.in/ S.C./ file name =41154

sec. 42 and sec.45 of Prisons Act - Jail Manual - Carrying a cell phone and charger by a visitor in Jail - F.I.R. registered under sec. 42 and 45(12) of Prisons Act - writ to quash under sec.482 of Cr.P.C. - High court dismissed - Apex court set aside the High court order - held that by the date of offence Cell Phone not included as prohibitory Article and By the date of offence no communication was done - the accused is only a visitor not a prisoner , so the above sections not applicable to the accused - quashed the F.I.R and charges by allowing the criminal appeal = The appellant had gone as a visitor to the Central Jail, Ferozepur on17.09.2009. There, on being searched, a mobile phone was recovered from histurban and a charger was recovered from his shoes. An FIR dated 24.09.2009was filed at the Police Station Ferozepur, under Sections 42 and 45 (12)of the Prisons Act, 1894 (in short “the Act”). The Chief JudicialMagistrate of Ferozepur charged him on 01.05.2010 under Sections 42 and 45of the Act. The appellant approached the High Court of Punjab and Haryanaby way of a petition under Section 482 of the Code of Criminal Procedure,1973, praying that the FIR be quashed. The High Court of Punjab and Haryanaby way of impugned judgment and final order dated 19.07.2013 dismissed thepetition, and inter alia held that “….the accused is at liberty to take allpleas available to him during the trial”.4. The High Court in its impugned order has interpreted Section 42 ofthe Act, and held that whoever communicates or attempts to communicate withany prisoner is liable for punishment. It said that the appellant hereinwas entering the jail with a mobile phone and its charger, apparently toenable communication with a prisoner. It was held that “ After presentationof challan, charges have already been framed against the petitioner. Inthese circumstances, at this stage, no ground for quashing of the FIR inquestion is made out.” =Section 482 of the Code of Criminal Procedure reads as under :- “482. Saving of inherent powers of High Court: Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”Under this Section, the High Court has the power to quash an FIR. Thiscourt in the case of State of Haryana v. Bhajan Lal [1] has laid down thefollowing categories of cases in which the High Court can exercise itspower under Section 482 and quash the FIR:- “1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”[2]14. These principles were further reiterated by a three judge bench ofthis Court in the case of Sunder Babu v. State of Tamil Nadu[3].15. The case of the appellant clearly falls under category (1) of thegrounds of quashing of FIR mentioned in the case of Bhajan Lal (supra). Onthe date of the offence, mobile phone was not listed as one of theprohibited articles under the Punjab Prison Manual. Thus, no offence ismade out under Section 42 of the Act, as there was no communication whichwas done or was attempted to being done contrary to the rules. Further, theappellant was not a prisoner on the date of the offence. Hence, he couldnot have committed a prison offence as defined under Section 45 of the Act.16. In view of the foregoing reasons, the appeal is allowed and theimpugned judgment of the High Court is set aside. The FIR dated 24.09.2009and the proceedings against the appellant are quashed. There will be noorder as to costs.2014 ( January - Vol - 1-D.B.) Judis.nic.in/ S.C./ file name =41154

2. This appeal is filed by the appellant questioning the correctness of
the judgment and final order passed by the High Court of Punjab and Haryana
at Chandigarh in petition Crl. Misc. No. M-13296 of 2011 (O & M) urging
various facts and legal contentions in support of his case.

3. Necessary relevant facts are stated hereunder to appreciate the case
of the appellant and also to find out whether the appellant is entitled to
the relief prayed for in this appeal.

The appellant had gone as a visitor to the Central Jail, Ferozepur on17.09.2009. There, on being searched, a mobile phone was recovered from histurban and a charger was recovered from his shoes. An FIR dated 24.09.2009was filed at the Police Station Ferozepur, under Sections 42 and 45 (12)of the Prisons Act, 1894 (in short “the Act”). The Chief JudicialMagistrate of Ferozepur charged him on 01.05.2010 under Sections 42 and 45of the Act. The appellant approached the High Court of Punjab and Haryanaby way of a petition under Section 482 of the Code of Criminal Procedure,1973, praying that the FIR be quashed. The High Court of Punjab and Haryanaby way of impugned judgment and final order dated 19.07.2013 dismissed thepetition, and inter alia held that “….the accused is at liberty to take allpleas available to him during the trial”.4. The High Court in its impugned order has interpreted Section 42 ofthe Act, and held that whoever communicates or attempts to communicate withany prisoner is liable for punishment. It said that the appellant hereinwas entering the jail with a mobile phone and its charger, apparently toenable communication with a prisoner. It was held that “ After presentationof challan, charges have already been framed against the petitioner. Inthese circumstances, at this stage, no ground for quashing of the FIR inquestion is made out.”

5. The learned counsel for the appellant contended that the High Court
had not appreciated the contention that the offence under Sections 42 and
45 of the Act is not made out, and that mobile phone and charger are not
included in the list of the prohibited articles. It was also contended that
section 52-A, which prohibited the carrying of a mobile phone, has not been
notified yet, and that it is still a Bill. It was further contended that
even if the notification were to be taken as implementable, it was dated
08.03.2011. The offence is admittedly of 2009, and thus, this notification
will not apply to the case as the same is prospective in nature.

6. The learned counsel for the respondents contended that the appellant
was hiding a mobile phone in his turban and a charger in his shoe, thus,
prima facie, the case under Section 42 of the Act has been made out
against him. The counsel also contended that the sections mentioned in the
charge sheet are attracted, and that there is no reason for the courts to
interfere at this stage.

7. We have heard the rival legal contentions and perused the documents
produced on record. Two issues arise for our consideration:

1) Whether an offence is made out under Sections 42 and 45 (12) of the
Prisons Act?

2) Whether the High Court was justified in rejecting the petition to
quash the FIR?

Answer to Point no.1

8. We have to examine Sections 42 and 45 of the Act in detail in order
to understand the issue at hand. Section 45 of the Act provides for acts
which are declared to be prison offences when committed by a prisoner.
Clause (12) makes receiving, possessing or transferring any prohibited
article a prison offence.

9. The appellant was not a prisoner at the date of the commission of the
offence. He could thus, not have committed a ‘prison offence’ as defined
under Section 45 of the Act. Hence, no offence is made out under Section 45
of the Act. Insofar as Section 42 of the Act is concerned, it provides that
only that communication, which is contrary to the rules made under Section
59 of the Act is prohibited. Section 42 of the Act reads as under :

“42. Penalty for introduction or removal of prohibited articles
into or from prison and communication with prisoners.—
Whoever, contrary to any rule under section [59] introduces or
removes, or attempts by any means whatever to introduce or
remove, into or from any prison, or supplies or attempts to
supply to any prisoner outside the limits of a prison, any
prohibited article,

and every officer of a prison who, contrary to any such rule,
knowingly suffers any such article to be introduced into or
removed from any prison, to be possessed by any prisoner, or to
be supplied to any prisoner outside the limits of a prison,

and whoever, contrary to any such rules, communicates or
attempts to communicate with any prisoner,

and whoever abets any offence made punishable by this section,

shall, on conviction before a Magistrate, be liable to
imprisonment for a term not exceeding six months, or to fine
not exceeding two hundred rupees, or to both.”

10. The Punjab Jail Manual lists the prohibited articles in Punjab
prisons. Para 606 of the Manual lists the following Prohibited Articles:

“…..

1) Spirituous liquors of every description

2) Tobacco and all other substances whatsoever which are or may be
intended to be used for the purpose of smoking, chewing or snuffing,
and all instruments and appliances whatsoever, which may be used for
or in connection with smoking, chewing or snuffing,

3) All explosive, intoxicating or poisonous substances, and chemicals
whether fluid or solid of whatever description.

4) All arms and weapons, and articles which are capable of being used as
weapons of whatever description.

6) All books, paper and printed or written matter and materials and
appliances for printing or writing of whatever description.

7) String, rope, chains and all materials, which are capable of being
converted into string or rope or chains, of whatever description.

8) Wood, bricks, stones and earth of every description.”

This list does not mention Mobile phone or charger as one of the prohibited
articles. Thus, the communication, even if it was attempted to being done,
was not contrary to the prison rules, and thus, is not an offence under
Section 42 of the Act.

11. The Prisons (Punjab Amendment) Bill, 2011 provides for the addition
of section 52-A to the Act. This Section reads thus :

“52-A. (1)-Notwithstanding anything contained in this Act, if
any prisoner is found guilty of possessing, operating or using
a mobile phone or their component parts as like SIM card,
memory card, battery or charger or if the prisoner or any other
person assists or abets or instigates in the supply thereof, he
shall be punished with imprisonment for a term, not exceeding
one year or with fine not exceeding Rs 25,000 or with both……”

This Section, thus, makes the possession of the mobile phone by the
prisoner and supplying the phone by any person an offence. The notification
by the Punjab Government that this section is in force is dated 08.03.2011.
The FIR for the offence was dated 24.09.2009. This notification will
obviously not apply to the case in hand as the alleged offence was
committed in 2009, and retrospective effect will not apply in the case of
criminal laws. Hence, there is no offence made out against the appellant
and we cannot accept the reasoning of the High Court in the impugned
judgment. We hereby hold that this section cannot be made applicable to the
facts of the present case.

Answer to point no.2

12. It is our view that in light of the settled legal principles, the
High Court has erred in dismissing the petition to quash the FIR.

13. Section 482 of the Code of Criminal Procedure reads as under :- “482. Saving of inherent powers of High Court: Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

Under this Section, the High Court has the power to quash an FIR.
This
court in the case of State of Haryana v. Bhajan Lal [1] has laid down the
following categories of cases in which the High Court can exercise its
power under Section 482 and quash the FIR:-

“1. Where the allegations made in the First Information Report
or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima-facie constitute any
offence or make out a case against the accused.

2. Where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. do not disclose
a cognizable offence, justifying an investigation by police
officers Under Section 156(1) of the Code except under an order
of a Magistrate within the purview of Section 155(2) of the
Code.

3. Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.

4. Where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an
order of a Magistrate as contemplated Under Section 155(2) of
the Code.

5. Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with
an ulterior motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal grudge.”[2]

14. These principles were further reiterated by a three judge bench of
this Court in the case of Sunder Babu v. State of Tamil Nadu[3].

15. The case of the appellant clearly falls under category (1) of thegrounds of quashing of FIR mentioned in the case of Bhajan Lal (supra). Onthe date of the offence, mobile phone was not listed as one of theprohibited articles under the Punjab Prison Manual. Thus, no offence ismade out under Section 42 of the Act, as there was no communication whichwas done or was attempted to being done contrary to the rules. Further, theappellant was not a prisoner on the date of the offence. Hence, he couldnot have committed a prison offence as defined under Section 45 of the Act.16. In view of the foregoing reasons, the appeal is allowed and theimpugned judgment of the High Court is set aside. The FIR dated 24.09.2009and the proceedings against the appellant are quashed. There will be noorder as to costs.